It seems that if the offender be seen in the commission of an offence by one person he may be arrested by another person who did not see him committing it. (1)

The following is a list, alphabetically arranged, of the offences mentioned in clause 2 of the above Article 552 and for which, when found committing, an offender may be arrested, without warrant, by a peace officer:

Attempting to injure or poison cattle, (Article 500).

Cruelty to animals, (Article 512).

Cutting booms, or breaking loose rafts or cribs of timber, (Article 497).

Counterfeiting foreing copper coin, (Article 473).

Exporting counterfeit coin, (Article 465).

Keeping cock-pit, (Article 513).

Obtaining by false pretence, (Article 359).

Obtaining execution of valuable securities by false pretence, (Article 360).

Possessing counterfeit current coin, (Article 471).

Possessing counterfeit foreign gold or silver coin, (Article 473).

See Articles 22-39, and full notes, illustrations, and authorities, as to arrests without warrant, at pp. 18-27, ante.

The Criminal Procedure Act, R.S.C., chap. 174 (which is now repealed) contained a provision (section 26) under which a person to whom any property was offered, for sale, or for pawn, was, if he had reasonable cause to suspect that an offence had been committed on or with respect to such property, empowered to apprehend, and carry before a justice of the peace, the person offering the same, together with such property, to be dealt with according to law.

But the Pawnbrokers' Act, (R.S.C, c. 128), is still in force, and contains, in sections 9 and 10, the following provisions :

"If any person offers to any pawnbroker, by way of pawn or pledge, or of exchange or sale, any goods, and is not able or refuses to give a satisfactory account of himself, or of the means whereby he became possessed of the goods, or wilfully gives any false information to the pawnbroker or his servant, as to whether such goods are his own property or not, or as to his name and place of abode, or as to the owner of the goods,-or if there is any other reason to suspect that such goods have been stolen or otherwise illegally or clandestinely obtained,—or if any person not entitled, or not having any color of title by law to redeem goods that have been pawned, attempts to redeem them, the person to whom the goods first above mentioned are offered to be pawned, or to whom the offer to redeem the goods in pawn is made, may seize and detain the person offering to pawn, and the goods offered to be pawned, or the person offering to redeem, as aforesaid, and shall convey such person and the goods offered to

(1) R. v. Howarth, R. & M., C. C. R. 207.

be pawned, or the person offering to redeem, and immediately deliver the person so offering to pawn and the goods offered to be pawned, or the person so offering to redeem, into the custody of a peace officer or constable, who shall, as soon as possible, convey such person and goods, or such person, as the case may be, before a justice of the peace of the district or county." (Sec. 9.)

"If such justice of the peace, upon examination and inquiry, has cause to suspect that such goods have been stolen or illegally or clandestinely obtained, or that the person offering to redeem them has not any pretence or color of right so to do, he shall commit the offender into safe custody for such reasonable time as is necessary for obtaining proper information, in order to be further examined; and if, upon either examination, it appears to the satisfaction of the justice that such goods were stolen or illegally or clandestinely obtained, or that the person offering to redeem them had not any pretence or color of right so to do, he shall, unless the offence authorizes such commitment by any other law, commit the offender to the common gaol of the district or county where the offence was committed, for any term not exceeding three months," (See 10.)

PART XLIV.

Modes of prosecution.-Before the coming into force of the present Code there were four entirely different modes of proceeding against a person accused of having committed a criminal offence.

These different modes of prosecution and the changes proposed to be made by the English Draft Code were explained and commented upon by the Royal Commissioners in their report, in the following terms;

"He [the accused] may be taken before a Magistrate, and committed for trial: he may, except in a few cases, be indicted by a Grand Jury, without being so committed; he may in the case of homicide be committed and tried upon a coroner's inquisition; and in cases of misdemeanor he may be put upon his trial by a Criminal Information filed either by the Attorney-General ex officio, or, if the Queen's Bench division so orders, by the Master of the Crown office, at the instance of a private person injured. (1)

According to the ancient theory of the law from which it still derives its force, the course is this: The Queen from time to tiem, sends Commissioners through the country to hear and determine all accusations of crime, and to deliver the gaols. The Grand Juries of the different counties accuse by way of presentment certain persons as offenders, and the accusations are referred to a petty jury, by whom they are disposed of.

(1) For notes, illustrations and authorities on Criminal Informations, see pp. 244-248, ante; and for forms, see p. 262, ante.

The common practice is different: Suspected persons are brought before a justice of the peace by the police or by private complainants. The Magistrate takes the depositions of the witnesses, and either discharges the prisoner or commits him for trial. The accusation is put in the form of an indictment and laid before the Grand Jury, who, having heard the evidence, determine whether the accused is to be put upon his trial or not.

The Grand Jury are still, however, in theory, the sole accusers; but, inasmuch as they have long ceased to report matters within their own knowledge, and have come to act upon information supplied by others, any one can send up a bill before them accusing any person of any offence whatever, with certain specified exceptions.

The proceedings upon coroners' inquisitions is a relic of times preceding the appointment of justices of the peace. The Coroner and his jury at that time had a power of accusation concurrent with that of the Grand Jury, much as if a suspected person could in the present day be put on his trial upon the Magistrate's commital without any bill being found by the Grand Jury.

As to Criminal Informations they form a mode of proceeding adopted in peculiar cases, and call for no observation here.

In all common cases we think that of these modes of prosecution, that of initiating the charge before a magistrate is by far the fairest and most satisfactory in every way. It gives suspected persons full notice of the case against them, and it enables the judge and jury, who finally dispose of the prosecution, to discharge their duties with confidence that the whole matter has been properly prepared for their decision.

It is, moreover, the common mode in use. All others have become exceptional, and we think that, being the common course, it ought to be made imperative, in all cases.

We doubt whether the existence of the power to send up a bill before a Grand Jury without a preliminary enquiry before a magistrate, the extent of this power, and the facilities which it gives for abuse, are generally known.

It is not improbable that many lawyers, and most persons who are not lawyers, would be surprised to hear that, theoretically, there is nothing to prevent such a transaction as this :-Any person might go before a Grand Jury, without giving any notice of his intention to do so. He might there produce witnesses, who would be examined in secret, and of whose evidence no record would be kept, to swear, without a particle of foundation for the charge, that some named person had committed any atrocious crime. If the evidence appeared to raise a prima facie case, the Grand Jury, who cannot adjourn their enquiries, who have not the accused person before them, who have no means of testing in any way the evidence produced, would probably find the bill. The prosecutor would be entitled to a certificate from the officer of the Court that the indictment had been found. Upon this he would be entitled to get a warrant for the

arrest of the person indicted, who on proof of his identity must be committed to prison. The person so committed would not be entitled as of right, to bail, if his alleged offence were felony. Even if he were bailed, he would have no means of discovering upon what evidence he was charged, and no other information as to his alleged offence than he could get from the warrant as he would not be entitled by law to see the indictment or hear it read till he was called upon to plead. He would have no legal means of obtaining the least information as to the nature of the evidence to be given, or (except in cases of treason) even as to the names of the witnesses to be called against him; and he might thus be tried for his life without having the smallest chance of preparing for his defence, or the least information as to the character of the charge.

Of course, in practice, the conviction of an innocent man, under such circumstances, would be practically impossible. The judge would postpone the trial, the jury would acquit the prisoner, the prosecutor would probably be subjected to exemplary damages in an action for malicious prosecution; but it still remains that such is the law, though it could not be put in force without shocking the feelings of the whole community. That such, however, is the law, subject only to certain. exceptions hereinafter mentioned, there can be no doubt.

Although the law is theoretically the same in Ireland, a salutory practice has prevailed there, whereby if the accused has not been committed for trial, a private prosecutor is not permitted to lay an indictment before the Grand Jury without the leave of the presiding Judge, obtained in open Court.

The exceptions we have referred to are constituted by the statutes which provide that it shall not be lawful to present an indictment against any person for perjury, subornation of perjury, conspiracy, obtaining property by false pretences, keeping a gambling house, keeping a disorderly house, or any indecent assault, unless the prosecutor has been bound over to prosecute or give evidence, or unless the accused person has been committed to or detained in custody, or is bound by recognizance to appear to answer to the indictment, or unless the indictment is preferred with leave of the Court or of a Judge or the Attorney General, as in these statutes mentioned.

So far as it goes this legislation appears to us wise and sound. On the one hand, it secures, to the person accused, the fullest possible notice of the nature of the charge against him and of the evidence on which it is to be supported; on the other, it does not invest the Magistrate with an absolute veto, on a prosecution. It enables the prosecutor, if he thinks proper, to take the opinion of the Grand Jury as to whether the accused person should or should not be put on his trial. It is, however, impossible to defend, on any principle which occurs to us, the narrow range of the provisions. Why are indecent assaults included, and other charges of indecency, most easily made, most hard to refute, and commonly employed as the engines of extortion, excluded? On what possible ground can it be right that a

man should be at liberty to accuse another of murder, piracy, or arson, without giving him notice of the nature of the charge against him, whilst he is obliged to give him notice if he charges him with perjury or conspiracy? It is obvious that this legislation was partial and tentative.

As to persons committed upon a coroner's inquisition, the common though not universal practice is to take a prisoner, committed before the Coroner, before a Magistrate. We do not undervalue the coroner's inquest; but we see no reason why, in cases in which they result in a committal for murder or manslaughter, the suspected person should not have a right, by law, to be taken before a magistrate, and have the advantages which other accused persons possess ; and upon the whole we propose to extend the principle of the Vexatious Indictments Act to all offences whatever, except those which are tried on Criminal Informations.

Section 505 (1) accordingly provides that no one except the Attorney-General may prefer any Bill of indictment, unless he is bound over to prosecute, or unless he has the written consent of a judge of the High Court (2) or of the Attorney-General, or of the court before which the Bill is to be preferred, to do so; and section 506 (3) enacts that, henceforth, no one shall be tried upon a coroner's inquisition.

The effect of this will be that, as a rule, no one will be liable to be indicted without a preliminary enquiry being first held before a magistrate.

Should these proposals be adopted the regular course of a prosecution would consist of the following steps:

1. Procuring the appearance of the suspected person before a magistrate, either by summary arrest, summons, or warrant :

2. The preliminary hearing before the Magistrate, resulting either in the discharge or committal of the prisoner, and, in the case of his discharge, being followed, or not, by the binding over of the prose

cutor.

3. The preferring of the indictment before the Grand Jury : 4. The trial:

5. Proceedings by way of appeal subsequent to the trial.

We have provided in section 440, (4) with respect to both warrants and summonses, that they should not be refused by a magistrate merely because the alleged offender may be arrested without a warrant. This we believe to express the spirit, though not to be found in the letter of the present law. We are, however, informed that some justices take a different view, and refuse in cases of felony to

(1) Section 505 of the English Draft is to the same effect as Article 641 of the present Code (See Art. 641, post).

(2) Instead of the words "High Court" our Article, 641, uses the words " any Court of Criminal Jurisdiction."

(3) See article 642, post.

(4) See article 559, post.